Wells Fargo Financial Leasing, Inc. v. Pope

Filing 29

ORDER granting 18 Motion for Summary Judgment on Plaintiff's own conversion claim; granting 19 Motion for Summary Judgment on Defendant's counterclaims. Defendant's counterclaims are dismissed with prejudice. Upon conclusion of this matter, the Court will enter a final judgment in Plaintiff's favor as to its conversion claim. Signed by District Judge Keith Starrett on 1/11/2017 (dtj)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
EASTERN DIVISION
WELLS FARGO FINANCIAL LEASING, INC.
V.

PLAINTIFF

CIVIL ACTION NO. 2:15-CV-160-KS-MTP

WALTER T. POPE

DEFENDANT
MEMORANDUM OPINION AND ORDER

For the reasons below, the Court grants both Plaintiff’s Motion for Summary
Judgment [18] on its conversion claim and its Motion for Summary Judgment [19] on
Defendant’s counterclaims.
I. BACKGROUND
Defendant’s son, Aaron Pope, was an independent poultry farmer in Covington
County, Mississippi, under contract with Sanderson Farms, Inc. Aaron Pope financed
his operation by sale-leaseback arrangements and/or loans secured by farm equipment
from Defendant, Wells Fargo Financial Leasing, Inc. See Exhibits A-L to Complaint,
Wells Fargo Fin. Leasing, Inc. v. Pope, No. 2:15-CV-160-KS-MTP (S.D. Miss. Dec. 10,
2015), ECF Nos. 1-2, 1-3, 1-4, 1-5, 1-6, 1-7, 1-8, 1-9, 1-10, 1-11, 1-12, 1-13. He repaid
Wells Fargo via a “Poultry Proceeds (Security Agreement) And Notice to Buyer,”
pursuant to which Sanderson Farms remitted $17,540.00 from the proceeds of every
poultry flock grown by Aaron Pope directly to Wells Fargo, while paying the remaining
balance to Pope. See Exhibit G, ECF No. 1-8.
Around 2013, Aaron Pope filed for bankruptcy in the United States Bankruptcy
Court for the Southern District of Mississippi. Before he filed for bankruptcy, he

transferred his grower contract with Sanderson Farms to Defendant, Walter Pope.
Aaron Pope grew four poultry flocks for Sanderson Farms under Defendant’s grower
contract, using the equipment which Wells Fargo either owned and/or in which it
possessed a security interest. Sanderson Farms did not deduct and remit payments to
Wells Fargo from the proceeds of these final four flocks because Defendant, Walter
Pope, was not subject to a proceeds assignment. Defendant then transferred the funds
to his son or used them to pay his son’s other creditors.
Plaintiff filed this action against Defendant, asserting claims of conversion,
tortious interference with contract, tortious interference with business relations, and
unjust enrichment. Defendant asserted counterclaims of negligence, defamation, “bad
faith prosecution,” abuse of process, and malicious prosecution. Plaintiff filed Motions
for Summary Judgment [18, 19] as to its conversion claim and Defendant’s
counterclaims.
II. STANDARD OF REVIEW
Rule 56 provides that “[t]he court shall grant summary judgment if the movant
shows that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a); see also Sierra Club, Inc.
v. Sandy Creek Energy Assocs., L.P., 627 F.3d 134, 138 (5th Cir. 2010). “An issue is
material if its resolution could affect the outcome of the action.” Sierra Club, Inc., 627
F.3d at 138. “An issue is ‘genuine’ if the evidence is sufficient for a reasonable jury to
return a verdict for the nonmoving party.” Cuadra v. Houston Indep. Sch. Dist., 626
F.3d 808, 812 (5th Cir. 2010).
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The Court is not permitted to make credibility determinations or weigh the
evidence. Deville v. Marcantel, 567 F.3d 156, 164 (5th Cir. 2009). When deciding
whether a genuine fact issue exists, “the court must view the facts and the inference
to be drawn therefrom in the light most favorable to the nonmoving party.” Sierra
Club, Inc., 627 F.3d at 138. However, “[c]onclusional allegations and denials,
speculation, improbable inferences, unsubstantiated assertions, and legalistic
argumentation do not adequately substitute for specific facts showing a genuine issue
for trial.” Oliver v. Scott, 276 F.3d 736, 744 (5th Cir. 2002).
III. DISCUSSION
A.

Conversion
Plaintiff contends that Defendant converted proceeds from the sale of poultry

flocks which it was owed under the various security and financing agreements entered
into by Aaron Pope. “To make out a conversion, there must be proof of a wrongful
possession, or the exercise of a dominion in exclusion or defiance of the owner’s right,
or of an unauthorized and injurious use, or of a wrongful detention after demand.”
Smith v. Franklin Custodian Funds, Inc., 726 So. 2d 144, 149 (Miss. 1998). The
plaintiff must present “proof that the defendant either did some positive wrongful act
with the intention to appropriate the property to himself, or to deprive the rightful
owner of it, or destroyed the property.” Greenline Equip. Co. v. Covington County Bank,
873 So. 2d 950, 955 (Miss. 2002). Phrased differently, the defendant must have
exercised “some unlawful assumption of dominion over the personal property involved,
in defiance or exclusion of the plaintiff’s rights, or else a withholding of the possession
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under a claim of right or title inconsistent with that of plaintiff.” Id. The plaintiff’s
interest in the property must have been “made known and resisted . . . .” Id. In
summary, to prove a conversion claim, Plaintiff must demonstrate that it had a right
or interest in the disputed property, that Defendant knew of its right or interest, and
that he exercised control or dominion over the property in exclusion of its right or
interest. Id.; see also Cmty. Bank, Ellisville, Miss. v. Courtney, 884 So. 2d 767, 773-74
(Miss. 2004).
First, the Court must determine whether Plaintiff had any right to the disputed
poultry flock proceeds. According to the Poultry Proceeds (Security Agreement), Aaron
Pope was obligated pay Plaintiff “the sum of $17,540.00 per flock, 5 flocks per year,
payable . . . UNTIL FURTHER NOTICE.” Exhibit G, [1-8]. It is undisputed that Aaron
Pope failed to make four payments to Plaintiff from the final four flocks he raised,
defaulting on his obligations under the Poultry Proceeds (Security Agreement).
Aaron Pope also entered into various Security Agreements [1-4, 1-5, 1-6, 1-7]
related to his leases with Plaintiff. Under three of the Security Agreements, an event
of default was “[a]ny default under the Lease or other obligations due under any other
Lease Agreements or other financing agreements, or other indebtedness when due . .
. .” Exhibits D-F, [1-5, 1-6, 1-7]. Likewise, a fourth Security Agreement [1-4] “secure[d]
the payment and performance of each and every debt, liability and obligation of every
type and description that Debtor may now or at any time hereafter owe to” Plaintiff,
and defined a default as “fail[ing] to pay any or all” such obligations when due. Exhibit
C, [1-4]. Therefore, Aaron Pope’s failure to make the required payments to Plaintiff
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upon sale of his four poultry flocks prior to filing a petition of bankruptcy constituted
a default under the terms of his Poultry Proceeds (Security Agreement) [1-8] and at
least four other Security Agreements [1-4, 1-5, 1-6, 1-7] with Plaintiff.
Each Security Agreement [1-4, 1-5, 1-6, 1-7] and the Poultry Proceeds (Security
Agreement) [1-8] granted Plaintiff a security interest in the “products” and “proceeds”
of the secured property – i.e., the products and proceeds of the poultry houses, compost
drum, generator, land, and related equipment of Aaron Pope’s poultry farming
operation. Therefore, Plaintiff had a security interest in the proceeds from the sale of
Aaron Pope’s final four poultry flocks. In fact, Defendant does not dispute that Plaintiff
had a perfected security interest in Aaron Pope’s poultry houses and other farm
equipment and, therefore, the proceeds and products therefrom.
Upon default, Aaron Pope’s obligations to Defendant became immediately due
and payable. Exhibit C [1-4], at 2; Exhibits D-F, [1-5, 1-6, 1-7]. Therefore, because the
full proceeds of the sale of Aaron Pope’s final four poultry flocks were collateral under
the terms of the loan documents, as described above, Plaintiff was entitled to those
proceeds in satisfaction of his obligations.
Next, the Court must determine whether Defendant knew of Plaintiff’s right to
the poultry flock proceeds, and whether his actions were in exclusion of Plaintiff’s
rights. In his deposition, Defendant admitted that he knew Aaron Pope owed money
to Plaintiff, and that the debt was secured by the land, poultry houses, and equipment
of his poultry farming operation. Exhibit B at 5, Wells Fargo Fin. Leasing, Inc. v. Pope,
No. 2:15-CV-160-KS-MTP (S.D. Miss. Oct. 28, 2016), ECF No. 18-2. Defendant also
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testified: “I didn’t know anything about how they [Plaintiff] were getting paid, but I
knew they were getting paid.” Id. He testified that he did not know that Sanderson
Farms was paying Plaintiff directly from flock proceeds. Id. at 12. But he knew that
Aaron Pope had defaulted on his obligations. Id. at 5. When asked why he accepted
Aaron Pope’s transfer of the Sanderson Farms grower contract, Defendant testified
that he intended to shield the poultry operation’s assets from an individual named
Linda Brock, who was influencing Aaron Pope. Id. at 9.
“While conversion requires an intentional act, . . . the required intent does not
have to be the intent to be a wrongdoer,” and “good faith is not necessarily an excuse.”
Wallace v. United Miss. Bank, 726 So. 2d 578, 589 (Miss. 1998). “The intent required
is not necessarily a matter of conscious wrongdoing. It is rather an intent to exercise
a dominion or control over the goods which is in fact inconsistent with the plaintiff’s
rights.” Id. For example, “[a] purchaser of stolen goods or an auctioneer who sells them
in the utmost good faith becomes a converter, since the auctioneer’s acts are an
interference with the control of the property. A mistake of law is no defense.” Id.
Here, Plaintiff has presented sufficient undisputed evidence to meet the
knowledge/intent element of conversion. The evidence shows that Defendant
intentionally accepted a transfer of the Sanderson Farms grower contract, which
prevented Plaintiff from receiving its regularly scheduled payments under the Poultry
Proceeds (Security Agreement) [1-8]. Likewise, it is undisputed that Defendant
permitted his son, Aaron Pope, to receive all the proceeds from the first two poultry
flocks. See Exhibit B [18-2], at 13. Defendant deposited the third and fourth Sanderson
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Farms payments into his own bank account. Id. at 13-14. He later transferred some of
the funds to his son, Aaron Pope, id. at 15, and used some of them to pay his son’s
other creditors. Id. at 15-17. These actions constitute intentional acts “to exercise a
dominion or control over the goods which [are] in fact inconsistent with the plaintiff’s
rights.” Wallace, 726 So. 2d at 589. Defendant acted intentionally, and his actions were
in exclusion of Plaintiff’s rights to the proceeds from the sale of the poultry flocks.1
First Bank v. E. Livestock Co., 837 F. Supp. 792, 793 (S.D. Miss. 1993) (“One who
violates a valid security interest of a financial institution by not accounting to that
financial institution for its security interest is subject to liability for conversion of the
institution’s funds.”).
In response, Defendant argues that Plaintiff had no legal right to the proceeds
of any flock grown by Pope Farms, Inc. – Defendant’s business entity – because its loan
agreements, leases, and security agreements were with Aaron Pope. But privity of
contract is not a necessary element of conversion, and Defendant need not be in
contract with Plaintiff to have converted funds to which Plaintiff was legally entitled.
Moreover, the security agreements executed by Aaron Pope provided Plaintiff with a
security interest in Aaron Pope’s farming property and equipment and the proceeds

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The Court also notes that Defendant had constructive notice of Plaintiff’s
security interests in Aaron Pope’s poultry farming equipment and the proceeds
thereof because Plaintiff publicly filed Deeds of Trust [1-2, 1-3] and UCC Financing
Statements [1-9, 1-10, 1-11, 1-12, 1-13]. See Cmty. Trust Bank of Miss. v. First Nat’l
Bank of Clarksdale, 150 So. 3d 683, 691 (Miss. 2014); Henderson v. Bank of Am.,
N.A., 510 B.R. 76, 97 (Bkr. S.D. Miss. 2014) (“[T]he mere recording of a deed of trust
is constructive notice to strangers of the transaction.”).
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thereof, regardless of what corporate entity had a grower contract with Sanderson
Farms.
For these reasons, the Court grants Plaintiff’s Motion for Summary Judgment
[18] as to its conversion claim against Defendant. The amount of the judgment shall
be at least $70,160.00 – the total payments due to Plaintiff from each of the final four
flocks. However, the Court reserves the right to enter judgment in an amount up to
$284,918.62 – the full amount of cash proceeds – upon a showing by Plaintiff that it is
entitled to such. Plaintiff’s briefing on this issue was inadequate, but the Court can
take up the issue by hearing or motion, as the parties would prefer. Plaintiff’s security
interest attached to the full amount of the proceeds, but Plaintiff has not directed the
Court to any evidence showing Aaron Pope’s total indebtedness at the time of default.
If the debt was less than $284,918.62, then Plaintiff would not be entitled to the full
proceeds.
B.

Negligence Counterclaim
The four elements of negligence are well-established: 1) a duty, or obligation,

recognized by law, requiring the person to conform to a certain standard of conduct, for
the protection of others against unreasonable risks; 2) a breach of the duty, a failure
on the person’s part to conform to the standard required; 3) a reasonably close causal
connection between the conduct and the resulting injury; and 4) actual loss or damage
resulting to the interest of another. Weathersby Chevrolet Co. v. Redd Pest Control Co.,
778 So. 2d 130, 133 (Miss. 2001). Among other things, Plaintiff argues that Defendant
has not identified any legally cognizable duty which it owed him. In his response brief,
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Defendant failed to address this issue – or any issue specifically related to his
negligence counterclaim.
Defendant has the burden of proof on his counterclaims, and, therefore, in
response to Plaintiff’s motion alleging that there is no evidence to support his
negligence counterclaim, Defendant “must point to evidence that would raise a genuine
factual dispute as to a material element” of the claim. Bacharach v. Suntrust Mortg.,
827 F.3d 432, 434 (5th Cir. 2016). Defendant provided no evidence or argument with
respect to any duty Plaintiff purportedly owed him to form the basis of his negligence
counterclaim. Accordingly, the Court grants Plaintiff’s motion for summary judgment
as to the negligence counterclaim.
C.

Defamation
The elements of a defamation claim are: “(1) a false and defamatory statement

concerning plaintiff; (2) unprivileged publication to a third party; (3) fault amounting
at least to negligence on part of publisher; (4) and either actionability of statement
irrespective of special harm or existence of special harm caused by publication.”
Armistead v. Minor, 815 So. 2d 1189, 1193 (Miss. 2002).
Plaintiff argues that the alleged defamatory statements at issue are in
connection with this judicial proceeding and, therefore, privileged. Defendant’s briefing
indicates that his defamation counterclaim does, in fact, arise from statements made
by Plaintiff in this case. “[D]efamatory matter set forth in a judicial proceeding is
absolutely privileged and no action will lie for libel and slander based on such
defamatory matter if the matter is relevant or pertinent to the issues involved in the
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case.” Ladner v. Arrington, 374 So. 2d 831, 833 (Miss. 1979). Defendant admitted that
he knew of no statements Plaintiff had made about him to any third party, and that
he was not aware of any public statements other than this lawsuit. Exhibit B [18-2],
at 24. Therefore, the Court grants Plaintiff’s motion for summary judgment as to
Defendant’s defamation counterclaim.
D.

“Bad Faith Prosecution”
Defendant asserted a counterclaim of “bad faith prosecution.” There is no such

cause of action under Mississippi law. To the extent Defendant intended to assert
claims of abuse of process and malicious prosecution, the Court addresses them below.
E.

Abuse of Process
The elements of abuse of process are: “(1) that the defendant made an illegal and

improper use of the process, a use neither warranted nor authorized by the process; (2)
that the defendant had an ulterior motive or purpose in exercising such illegal,
perverted or improper use of process; and (3) that damage resulted from the
irregularity.” Williamson v. Keith, 786 So. 2d 390, 394 (Miss. 2001). Plaintiff argues
that Defendant has no evidence of “an ulterior motive or purpose” behind this
litigation. Id.
Defendant has the burden of proof on his counterclaims, and, therefore, in
response to Plaintiff’s motion alleging that there is no evidence to support his
negligence counterclaim, Defendant “must point to evidence that would raise a genuine
factual dispute as to a material element” of the claim. Bacharach, 827 F.3d at 434.
Defendant provided no evidence of an ulterior motive or purpose behind this litigation.
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In his deposition, he claimed that he “[hadn’t] done a thing in the world to Wells
Fargo.” Exhibit B [18-2], at 24. He speculated that Plaintiff was “using [him] as a
vendetta against [his] son,” because it was angry that Aaron Pope defaulted on his
debts. Id. at 25. However, Defendant presented no evidence to support this speculation.
Furthermore, the use of process in this case was both “warranted [and] authorized by
the process,” Williamson, 786 So. 2d at 394, insofar as the Court has granted Plaintiff’s
motion for summary judgment as to its conversion claim. The Court likewise grants
Plaintiff’s motion for summary judgment as to Defendant’s abuse of process
counterclaim.
F.

Malicious Prosecution
The elements of malicious prosecution are: “(1) the institution or continuation

of original judicial proceedings, either criminal or civil; (2) by, or at the insistence of
the defendants; (3) the termination of such proceeding in plaintiff’s favor; (4) malice in
instituting the proceedings; (5) want of probable cause for the proceedings; and (6) the
suffering of damages as a result of the action or prosecution complained of.” Bearden
v. Bellsouth Telcoms., Inc., 29 So. 3d 761, 764 (Miss. 2010). Among other things,
Plaintiff argues that Defendant has no evidence of malice in instituting these
proceedings, or that there is a want of probable cause.
Defendant has the burden of proof on his counterclaims, and, therefore, in
response to Plaintiff’s motion alleging that there is no evidence to support his
negligence counterclaim, Defendant “must point to evidence that would raise a genuine
factual dispute as to a material element” of the claim. Bacharach, 827 F.3d at 434.
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Again, Defendant presented no evidence beyond his own unsupported speculation that
Plaintiff instituted these proceedings maliciously. Furthermore, Plaintiff’s probable
cause for filing this suit is evident, insofar as the Court has granted summary
judgment in its favor as to the conversion claim against Defendant. The Court also
grants Plaintiff’s motion for summary judgment as to Defendant’s malicious
prosecution counterclaim.
IV. CONCLUSION
For the reasons provided above, the Court grants both Plaintiff’s Motion for
Summary Judgment [18] on its own conversion claim and its Motion for Summary
Judgment [19] on Defendant’s counterclaims. Defendant’s counterclaims are dismissed
with prejudice. Upon the conclusion of this matter, the Court will enter a final
judgment in Plaintiff’s favor as to its conversion claim.
SO ORDERED AND ADJUDGED, on this, the

11th

day of January, 2017.

s/Keith Starrett
UNITED STATES DISTRICT JUDGE

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